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Mukasey Bid Survives Division on Senate Panel

By Dan Eggen and Paul Kane
Washington Post Staff Writer and washingtonpost.com Staff Writer
Wednesday, November 7, 2007

The Senate Judiciary Committee narrowly approved the nomination of Michael B. Mukasey as attorney general yesterday, moving him a step closer to virtually assured confirmation on the Senate floor as the new head of the troubled Justice Department.

The committee's 11 to 8 vote in favor of Mukasey was accompanied by an impassioned exchange of views between his supporters and opponents, who divided principally over of his refusal to say whether an aggressive interrogation tactic that mimics drowning amounts to illegal torture under U.S. law.

Two prominent Democrats, Sens. Dianne Feinstein (Calif.) and Charles E. Schumer (N.Y.), joined nine Republicans in voting for Mukasey, arguing that the former federal judge was the best candidate they could expect as the Bush administration's replacement for Alberto R. Gonzales, who resigned as attorney general in September under a cloud of scandal.

Schumer, who has found himself in a politically perilous situation after recommending Mukasey to the White House as a consensus candidate, said rejecting him would lessen the chances of reform at the Justice Department by allowing President Bush to leave in place a "caretaker" acting attorney general.

"All the work we have done to pressure Attorney General Gonzales to resign would be undone in a moment," Schumer said. ". . . No one questions that Judge Mukasey would do much to remove the stench of politics from the Justice Department. I believe we should give him that chance."

The split decision capped an unexpected uproar over Mukasey, who until three weeks ago had attracted bipartisan support as a qualified and relatively nonpolitical replacement for Gonzales.

Mukasey angered lawmakers in both parties by repeatedly declining to answer questions about the interrogation technique known as waterboarding, saying he found the technique "repugnant" but could not determine its legality without access to classified information. Some Democrats also said they were troubled by Mukasey's views of expansive presidential powers in wartime.

Schumer and Feinstein said they took solace in Mukasey's assurances that he would enforce any future waterboarding ban passed by Congress. That argument prompted a robust retort from Sen. Edward M. Kennedy (D-Mass.).

"He will, in fact, enforce the laws that we pass in the future? Can our standards have really sunk so low?" Kennedy said. "Enforcing the law is the job of the attorney general. It's a prerequisite, not a virtue."

Although Senate Majority Leader Harry M. Reid (D-Nev.) announced his opposition to Mukasey yesterday, the nomination is likely to squeak through the full Senate by next week with support from all 49 Republicans, Sen. Joseph I. Lieberman (I-Conn.) and a sprinkling of conservative and moderate Democrats. Reid and his top deputy, Majority Whip Richard J. Durbin (D-Ill.), oppose the nomination, but no leadership-led filibuster effort is expected.

One of the most emotional moments yesterday came from Sen. Lindsey O. Graham (R-S.C.), a military lawyer who supported Mukasey but criticized his answers on waterboarding. Graham, who has frequently clashed with the Bush administration on interrogation and detention policies, said Mukasey is "a good man of the law" but also urged Congress to pass legislation specifically outlawing the use of waterboarding by all government entities, including the CIA.

"The world is not short of people and countries who will waterboard you. There's not a shortage of people who will cut your heads off in the name of religion," Graham said. "There is a shortage of people who believe in justice, not vengeance."

Graham's speech prompted Chairman Patrick J. Leahy (D-Vt.) and then Kennedy to leave their chairs and walk over to thank him, despite his support for Mukasey's nomination.

Nan Aron, executive director of the Alliance for Justice, a liberal advocacy group, said the "notion that Mukasey is an improvement on Alberto Gonzales is a woefully inadequate reason to vote to confirm him. It sets the bar far, far too low for this important office."

Numerous other liberal and human rights groups have urged Congress to reject Mukasey over the waterboarding issue. Some are also encouraging their members to punish any Democrat who supports the nomination.

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